CAS ad hoc Division (O.G. Sydney) 00/006 Dieter Baumann / International Olympic Committee (IOC), National Olympic Committee of Germany and International Amateur Athletic Federation (IAAF)

• Athletics
• Doping (nandrolone)
• Removal of accreditation for the Olympic Games
• CAS jurisdiction
• Principle of res judicata
• De novo hearing

1. By reason of their commitment to the Olympic Movement and their participation in the Olympic Games, the IFs must be deemed to have subscribed to the arbitration clause in the Olympic Charter.

2. A res iudicata defence can only succeed if the parties and the subject matter of the new dispute are the same as in the former action.

The Deutscher Sportbund e.V. (the German Sports Association, the “DSB”) held a without warning out of competition control test on 19 October 1999. The test was carried out on Mr. Dieter Baumann (the “Athlete”) while he was at training. The analysis of the A-sample in the IOC laboratory in Kreischa showed the following result: 19-norandrosteron 23.2 ng/ml and 19 noretiocholanolon 5.1 ng/ml. The B-sample test was norandrosteron 20.7 ng/ml. On 15 November 1999, the DSB arranged for another test to be carried out on the Athlete without giving warning. The analysis of the A-sample in the IOC laboratory Cologne shows the following result: 19 norandrosteron 24 ng/ml. The B-sample test was 26 ng/ml. The Athlete was given a hearing before the Anti-Doping Commission of the Deutscher Leichtathletikverband e.V. (the “DLV”). On 19 November 1999, the Anti-Doping Commission of the DLV temporarily suspended the Athlete on the grounds of a suspected doping offence. On 29 and 30 November 1999, employees of the IOC laboratory in Cologne took food substitutes and cosmetics from the Athlete’s home for the purpose of examining them and to locate a possible source for the positive findings. On 1 December 1999, an examination of a tube of toothpaste of the brand “Elmex” taken from the Athlete’s house revealed that the toothpaste contained norandrostendion. On 1 December 1999, an excretion test with a test person in the IOC laboratory in Cologne showed a positive finding in respect of nandrolon-metabolites after a specially prepared toothpaste containing norandrostendion had been used (Analysis of Prof. Dr. W. Schänzer, 2 December 1999). On 2 December 1999, the Athlete reported the commission of an offence by persons unknown to the Tübingen public prosecutor’s office. He claimed that his toothpaste had been manipulated. The public prosecutor’s office commenced an investigation. On 7 December 1999, while searching the Athlete’s house the police found a tube of toothpaste of the brand “Signal” in a sport bag in the basement. An examination of it showed that the toothpaste contained norandrostendion. On 30 May 2000, the Tübingen public prosecutor’s office discontinued the investigative proceedings started by the Athlete on the basis that no criminal involvement by a third party could be established. On 23 June 2000, the Rechtsausschuss (Legal Committee) of the DLV removed the Athlete’s suspension on the grounds that the necessary suspicion for a doping offence did not exist. On 13 July 2000, the Athlete was cleared by the Legal Committee of the DLV in respect of the doping suspicions. On 11 August 2000, a “Notice of Referral to Arbitration and Statement of the IAAF” was received by the DLV.
In August 2000, the Athlete was nominated by the NOC as a member of the German Olympic Team. On 30 August 2000, the Regional Court of Stuttgart granted an interim order against the IAAF on the application of the Athlete. Pursuant to such order the IAAF was prohibited under penalty of up to DM 500’000 for each breach from placing a competition ban on the Athlete until the end of the Olympic Games 2000 in Sydney.

CAS ad hoc Division (O.G. Sydney) 00/010 Alan Tsagaev / International Weightlifting Federation (IWF)

Weightlifting
Exclusion of a National Weightlifting Federation due to three positive doping cases
Lack of legal basis for such sanction

Although an international federation may have certain general discretionary powers to govern its sport even in the absence of specific provisions in the statutes or regulations, a suspension of an entire federation from participation in the Olympic Games, including innocent athletes who have not committed a doping offence or any other violation of the applicable rules, at least requires an explicit, and unambiguous legal basis.

Mr. Alan Tzagaev is a Bulgarian Athlete selected to compete in the weightlifiting events at the Sydney 2000 Olympic Games.

On 22 September 2000 the Executiver Board of the International Weightlifting Federation (IWF) rendered the following decision against the Bulgarian Weightlifting Federation after 3 Bulgarian weightlifters tested positive at the Sydney Olympic Games:

1.) The Bulgarian Weightlifting Federation is suspended forthwith for a period of not less than 12 months, pending further investigation.
2.) The Bulgarian Weightlifting Federation must present a detailed project – supported by their National Olympic Committee and National Sports Authorities – ensuring the elimination of the use of doping among their athletes.
3.) All remaining lifters as well as officials from Bulgaria will not be allowed to take part in the Olympic Games.

Hereafter on 22 september 2000 the Bulgarian Athlete Alan Tsagaev appealed this IWF decision of 22 September 2000 with the CAS ad hoc Division at the Sydney Olympic Games and requested the Panel to set aside his exclusion to compete at the Olympic Games.

The Athlete argued that under the IWF Rules after three positive doping tests within one year, the IWF must impose a $ 50.000 fine on the respective member federation. A suspension may be imposed only in the event of non payment of that fine and the IWF made no request for payment of a fine to the Bulgarian sports organisations.

The Panel rules that the IWF decision of 22 September 2000 lacked a sufficient legal foundation and must therefore be annulled in its relevant portions as far as the Athlete is affected, i.e. by reference to items 1 and 3 thereof.

Therefore the CAS ad hoc Division decides on 25 September 2000:

The application is granted insofar as points 1 and 3 of the decision made by the International Weightlifting Federation Executive Board on 22 September 2000 are annulled for lack of legal basis, with the consequence that the Applicant is allowed to participate in these Olympic Games.

Related cases:
CAS OG_2000_11 Andreea Raducan vs IOC
September 28, 2000
Swiss Federal Court 5P_427_2000 Andreea Raducan vs IOC
December 4, 2000

Ms Andreea Raducan is a Romanian minor Athlete (16) competing in the Gymnastics (Artistic) Women’s Individual All-Around event at the Sydney 2000 Olympic Games.
Mr Ioachin Oana is the official team physician of the Romanian team at the Sydney 2000 Olympic Games.

On 25 September 2000 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after her A and B samples tested positive for the prohibited substance pseudoephedrine in a concentration above the IOC threshold.

After hearing the IOC Medical Commission and the IOC Executive Board establish that the minor Athlete suffered from a headache, a running nose and a feeling of congestion. As treatment the team physician prescribed and provided to the Athlete a Nurofen Cold and Flu tablet on 20 and 21 September 2000.

The IOC Executive Board deems that the circumstances does not change anything to the fact that there was the presence in the system of the Athlete of a prohibited susbstance as clearly defined as doping in accordance with the Olympic Movement Anti-Doping Code.
Further the IOC Executive Board deems that the prohibited substance was prescribed by Dr Ioachin Oana and that he clearly was responsible for the anti-doping rule violation.

Regarding the Athlete the IOC Executive Board decides on 26 September 2000:

1.) The athlete Andreea Raducan member of the Romanian (ROM) team, is disqualified from the Gymnastics (Artistic) Women's Individual All-Around competition for use of prohibited substances (Chapter II, Article 2.2 of the Olympic Movement Anti-Doping Code).
2.) The NOC of Romania (ROM) is hereby ordered to withdraw and return the gold medal and the diploma awarded to the athlete Andreea Raducan for her first place in the Gymnastics (Artistic) Women's Individual All-Around competition.
3.) This decision shall enter into force immediately.

Regarding the team physician the IOC Executive Board decides on 26 September 2000:

1.) The official team physician Ioachin Oana, member of the Romanian (ROM) team, is excluded from the Games of the XXVII Olympiad in Sydney and declared ineligible for the XIX Olympic Winter Games in Salt Lake City 2002 and the Games of the XXVIII Olympiad in Athens 2004.
2.) This decision shall enter into force immediately.

CAS ad hoc Division (O.G. Sydney) 00/011 Andreea Raducan / International Olympic Committee (IOC)

Related cases:

• IOC 2000 IOC vs Andreea Raducan & Oana Ioachin
  September 26, 2000
• Swiss Federal Court 5P_427_2000 Andreea Raducan vs IOC
  December 4, 2000
  
  

Gymnastics
Doping (pseudoephedrine)
Disqualification from the event
Principle of strict liability

1. The discrepancy in the volume of urine reported in the doping control form and by the laboratory cannot reasonably be considered to have affected the results of what is a valid test, provided that the laboratory received sufficient volume of urine to conduct a valid analysis.

2. The Anti-Doping Code considers doping as a strict liability offence. This means that no intentional element is required to establish a doping offence. The mere presence of a forbidden substance in the urine sample is sufficient. This has been repeatedly confirmed by the CAS.

3. To establish a doping offence, it is not required to demonstrate that a competitive advantage was reached.

Ms Andreea Raducan is a Romanian minor Athlete (16) competing in the Gymnastics (Artistic) Women’s Individual All-Around event at the Sydney 2000 Olympic Games.

On 25 September 2000 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after her A and B samples tested positive for the prohibited substance pseudoephedrine in a concentration above the IOC threshold.

After hearing the IOC Medical Commission and the IOC Executive Board established that the minor Athlete suffered from a headach, a running nose and a feeling of congestion. As treatment the team physician prescribed and provided to the Athlete a Nurofen Cold and Flu tablet on 20 and 21 September 2000.

Consequently the IOC Executive Board decides on 26 September 2000 to disqualify the Athlete including withdrawal of her medal and diploma.

Hereafter the Athlete appealed the IOC decision with the CAS ad hoc Division at the Sydney Olympic Games.
The Athlete requested the Panel to set aside the IOC decision of 26 september 2000 and for restoring the gold medal and diploma to the Athlete.

The Athlete accepted the test results and the validity of the samples analysis. However she argued that the sample volume of urine was unclear and not in accordance with the Anti-Doping Code and as a result the test result should be invalidated. Further she contended that she was not responsible for the anti-doping rule violation since the Nurofen was provided by her team physician.

The Panel finds the minor irregularity revealed in the record showing the volume of urine taken cannot reasonably be considered to have affected the results of what is a valid test. The Panel further finds, notwithstanding the discrepancy in the volume of urine reported, the laboratory received sufficient volume of urine to conduct a valid anaysis.

Also the Panel finds the subjective elements argued in the attack on the finding of doping by the IOC do not affect the decision on the existence of a doping offence and are submissions only related to the assessment of any disciplinary sanction imposed.

Therefore the CAS ad hoc Division decides on 28 September 2000:

1.) The Panel is aware of the impact its decision will have on a fine, young, elite athlete. It finds, in balancing the interests of Miss Raducan with the commitment of the Olympic Movement to drug-free sport, the Anti-Doping Code must be enforced without compromise.

2.) Accordingly, the Panel finds:

• a. The application is dismissed.
• b. The decision of the IOC of 26 September 2000 is upheld.

CAS ad hoc Division (O.G. Sydney) 00/015 Mihaela Melinte / International Amateur Athletic Federation (IAAF)

• Athletics
• Doping (nandrolone)
• Provisional suspension imposed by an IF during the Olympic
• Games CAS jurisdiction
• Principle of strict liability

1. By reason of their commitment to the Olympic Movement and their participation in the Olympic Games, the international federations must be deemed to have subscribed to the arbitration clause in the Olympic Charter.

2. If an athlete is removed from the field of play moments before his/her turn to compete, such action creates a dispute arising during the Games within the meaning of Article 74 of the Olympic Charter. On that basis CAS has jurisdiction to rule on the dispute.

In September 2000 the IAAF has reported an anti-doping rule violation against the Romanian Athlete Mihaela Melinte after her sample tested positive for 19-norandrosterone (Nandrolone). After notification to the Romanian Athletic Federation a provisional suspension was ordered.

The Athlete was participating at the Sydney Olympic Games and not notified when she was informed on 27 September 2000 that she has been removed from the participants’ list on account of a doping violation. She was then escorted off the field.

Hereafter on 28 September the Athlete filed an appeal with the CAS Sydney Ad hoc division.

At the conclusion of the hearing, the Panel rendered the following oral ruling on the Application:

• a.) This is an Application for urgent relief affecting the Applicant’s eligibility to compete in the hammer throw later today.
• b.) The Panel finds that the manner in which the Applicant was advised of her suspension and removed from the athletic field was embarrassing and disrespectful. During the hearing, the IAAF expressed its apology for this circumstance.
• c.) The Panel finds that it does have jurisdiction to order the relief requested if it deems that relief justified.
• d.) The Applicant’s essential contention is that the IAAF failed to follow its own rules - particularly because the athlete never had a chance to put forth her position explaining this positive test result.
• e.) However, the Applicant acknowledged at this hearing that she had the opportunity to present to this Panel the positions which she would have provided to the IAAF. The Panel has also heard the explanations of the IAAF.
• f.) The Panel has considered all of the forgoing and finds no violation by the IAAF of its rules which justifies granting the relief requested.
• g.) The Application is therefore denied.

Elimination of cocaine and metabolites in plasma, saliva, and urine following repeated oral administration to human volunteers / Rebecca A. Jufer, Abraham Wstadik, Sharon L. Walsh, Barry S. Levine, Edward J. Cone

• Journal of Analytical Toxicology 24 (2000) 7 (October), p. 467–477
• PMID: 11043648
• DOI: 10.1093/jat/24.7.467

Abstract

Chronic administration of lipophilic drugs can result in accumulation and prolonged elimination during abstinence. It has been suggested that cocaine and/or metabolites can be detected in saliva and urine for an extended period following long-term, high-dose administration. The effects of chronic oral cocaine administration in healthy volunteer subjects with a history of cocaine abuse were investigated. Subjects were housed on a closed clinical ward and were administered oral cocaine in up to 16 daily sessions. In each session, volunteers received five equal doses of oral cocaine with 1 h between doses. Across sessions, cocaine was administered in ascending doses from an initial dose of 100 mg (500 mg/day) up to 400 mg (2 g/day), increasing by 25 mg/dose/session (125 mg/session). Participation in the study was terminated if cardiovascular safety parameters were exceeded. Plasma and saliva specimens were collected periodically during the dosing sessions and during the one-week withdrawal phase at the end of the study. All urine specimens were collected throughout the entire study. Specimens were analyzed for cocaine and metabolites by solid-phase extraction followed by gas chromatographic-mass spectrometric analysis in the SIM mode. The limit of detection for each analyte was approximately 1 ng/mL. The analytes measured included benzoylecgonine (BZE), ecgonine methyl ester, cocaine, benzoylnorecgonine, norcocaine, m- and p-hydroxycocaine, and m- and p-hydroxybenzoylecgonine. Noncompartmental analysis was employed for the determination of plasma and saliva pharmacokinetic parameters. Urinary elimination half-lives for cocaine and metabolites were determined by constructing ARE (amount remaining to be excreted) plots. Two phases of urinary elimination of cocaine and metabolites were observed. An initial elimination phase was observed during withdrawal that was similar to the elimination pattern observed after acute dosing. The mean (N = 6) plasma, saliva, and urine cocaine elimination half-lives were 1.5 +/- 0.1 h, 1.2 +/- 0.2 h, and 4.1 +/- 0.9 h, respectively. For three subjects, the mean cocaine urinary elimination half-life for the terminal phase was 19.0 +/- 4.2 h. There was some difficulty in determining if a terminal elimination phase for cocaine was present for the remaining three subjects because of interference by high concentrations of BZE. A terminal elimination phase was also observed for cocaine metabolites with half-life estimates ranging from 14.6 to 52.4 h. These terminal elimination half-lives greatly exceeded previous estimates from studies of acute cocaine administration. These data suggest that cocaine accumulates in the body with chronic use resulting in a prolonged terminal elimination phase for cocaine and metabolites.

Cocaine and its major metabolites in plasma and urine samples from patients in an urban emergency medicine setting / Robert H. Williams, Jack A. Maggiore, Steve M. Shah, Timothy B. Erickson, Adam Negrusz

• Journal of Analytical Toxicology 24 (2000) 7 (October), p. 478-481
• PMID: 11043649
• DOI: 10.1093/jat/24.7.478

Abstract

In this retrospective study, we examined the levels of cocaine and its major metabolites in plasma and urine from 29 randomly selected emergency department patients (19 males and 10 females, aged 19 to 55) whose urine screened positive for benzoylecgonine using fluorescence polarization immunoassay. Levels of cocaine along with benzoylecgonine, ecgonine methyl ester, and norcocaine were quantitated in EDTA plasma and urine from each patient using gas chromatography-mass spectrometry with selected ion monitoring. Admission diagnosis and history were also obtained for each patient. In plasma, the levels were 16-130 ng/mL for cocaine (n = 3), 27-96 ng/mL for ecgonine methyl ester (n = 9), and 18-1390 ng/mL for benzoylecgonine (n = 22). Norcocaine was not detected in any of the plasma samples. In urine, the concentration ranges were 4-40,130 ng/mL for cocaine (n = 23), 36-660,500 ng/mL for ecgonine methyl ester (n = 27), and 9-2520 ng/mL for norcocaine (n = 9). All urine samples were positive for benzoylecgonine (106-3,361,000 ng/mL), and benzoylecgonine was the only metabolite present in two urine samples (at concentrations of 407 and 435 ng/mL). Two patients had plasma and urine samples positive for all analytes (except norcocaine in plasma). The patient with the highest urinary concentrations of cocaine (40,130 ng/mL), ecgonine methyl ester (660,500 ng/mL), benzoylecgonine (3,361,000 ng/mL), and norcocaine (2520 ng/mL) had a small quantity of benzoylecgonine (465 ng/mL) in plasma. No correlation was noted with patient history, admitting diagnosis or symptomatology, or plasma/urine levels of cocaine or any of its metabolites.

Simultaneous GC-MS analysis of meta- and para-hydroxybenzoylecgonine and norbenzoylecgonine : a secondary method to corroborate cocaine ingestion using nonhydrolytic metabolites / Kevin L. Klette, George K. Poch, Robert Czarny, Ching Ong Lau

• Journal of Analytical Toxicology 24 (2000) 7 (October), p. 482-488
• PMID: 11043650
• DOI: 10.1093/jat/24.7.482

Abstract

Positive benzoylecgonine (BZE) urinalysis results are sometimes challenged in legal and administrative proceedings on the grounds that the presence of BZE is due to the addition of cocaine to the urine sample with subsequent in vitro hydrolysis to BZE. Consequently, counsel for the respondent or defendant may move that an ecgonine methyl ester (EME) analysis be preformed because EME is presumed to be solely an in vivo cocaine metabolite. For these reasons, a sensitive and rapid gas chromatographic-mass spectrometric procedure was developed for the simultaneous analysis of m-hydroxybenzoylecgonine (m-OHBZE), p-hydroxybenzoylecgonine (p-OHBZE), and N-desmethyl benzoyl ecgonine (norBZE), all of which are cocaine metabolites believed to arise exclusively via in vivo metabolism. Analysis of human urine specimens previously reported positive for BZE using GC-MS at the Department of Defense cutoff of 100 ng/mL demonstrated that at least one of the three metabolites was present in 79 of the 82 specimens studied (96.3%). Thus, the simultaneous analysis of r-OHBZE, p-OHBZE, and norBZE could be used to substantiate that the presence of BZE in urine specimens is the result of cocaine ingestion. Additionally, the premise that EME is a "true" in vivo cocaine metabolite was investigated by assessing the stability of cocaine in unpreserved urine samples at several pHs ranging from 5.0 to 9.0.

CAS 2000/A/274 S. / Fédération Internationale de Natation (FINA)

Related case:

CAS 2000_A_274 S. vs FINA - Preliminary Award
May 26, 2000

• Swimming
• Doping (testosterone)
• Burden of proof
• Right to be heard
• Prohibition of the retroactive application of substantive rules

1. The fundamental evidentiary nature of the IRMS Rule is not altered by the fact that this provision precludes athletes from raising a defence based upon evidence of a physiological or pathological condition. The T/E Rule only permits such a defence because an elevated T/E ratio does not constitute direct and conclusive evidence of the exogenous administration of testosterone. There may be other physiological or pathological reasons for an elevated T/E ratio. By contrast, IRMS analysis provides direct evidence of the exogenous administration of testosterone and, accordingly, there is no place for such a defence under the IRMS Rule.

2. Where a party adopts a position contrary to one it has previously taken, its conduct may constitute an abuse of right when the other party has relied on the initial position to its detriment. The prohibition against venire contra factum proprium does not however preclude a party from tendering new evidence or raising new arguments in an appeals arbitration procedure.

3. Under the Swiss Private Law Act, the right to be heard in adversarial proceedings specifically guarantees each party’s right to participate in the evidentiary proceedings, to rebut allegations made by the opposite party, to examine and criticize evidence adduced by the opposite party and to bring its own evidence in rebuttal before an award is rendered to its detriment. However, a party must immediately protest if it considers that its right to be heard has been violated, failing which, the party shall be deemed to have waived the right to protest at a later stage.

4. In general, it is necessary to apply the laws, regulations or rules that were in force at the time that the facts at issue occurred. This general principle is, however, subject to several exceptions, including an exception for laws or rules that are procedural in nature. In the absence of an express provision to the contrary, laws and rules relating to procedural matters apply immediately upon entering into force and regardless of when the facts at issue occurred.

On 25 March 2000 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Italian Athlete S. after her A and B samples tested positive for the prohibited substance testosterone with a T/E ratio above the threshold.

Hereafter in May 2000 the Athlete S. appealed the FINA decision of 25 March 2000 with the Court of Arbitration for Sport (CAS). The Athlete requested the CAS Panel to set aside the FINA decision and disputed the validity of the testing results related to the IRMS analysis of the samples.

The Panel finds that in this case it is common ground that the elevated T/E ratio detected on 24 January 1999 did not recur over the period of the Athlete’s longitudinal hormonal study. The Panel does not accept the Athlete’s submission that the sole finding of an elevated T/E ratio on 24 January 1999 can be explained by her physical condition.

Accordingly, the Panel finds that the longitudinal hormonal study constitutes additional evidence that the Athlete’s elevated T/E ratio was due to an exogenous administration of testosterone.

The Court of Arbitration for Sport Panel concludes that the Athlete has committed a doping offence under FINA Rules and decides on 19 October 2000:

1.) The Appeal filed by S. on 4 May 2000 is dismissed.

2.) The decision issued by the FINA Doping Panel on 25 March 2000 is confirmed.

J. Torres-Calleja, M. González-Unzaga, R. DeCelis-Carrillo,
L. Calzada-Sánchez, N. Pedrón
Life Sciences 68 (2001) 1769–1774

The purpose of this study was to assess the influence of the administration of high doses of androgenic anabolic steroids (AAS) on endocrine and semen parameters. Thirty volunteering bodybuilders were studied (ages ranging between 26.6
6 4.1 years). A history of anabolic steroid administration
was recorded for fifteen subjects, and results of semen analysis and endocrine parameters were compared with data from fifteen bodybuilders not using steroids. In those subjects using AAS, eight had sperm counts under the lower normal limit (20 3 10 6 sperm /ml), three had azoospermia, two polyzoospermia, and two had normal sperm counts. The percentage of morphologically normal sperm was significantly reduced, only 17.7% had normal spermatozoa. In the control group, only one subject
had oligozoospermia. The hormonal parameters revealed reduced FSH (1.5 6 3.2 vs 5.0 6 1.6, p, 0.001) and PRL (5.1 6 4.9 vs 9.2
6 4.4, p , 0.01) levels. LH, T, E2 and DHEA levels did not
vary.